CONSTITUTIONAL LAW RESEARCH PAPER

SEDITION LAWS

MEGHNA KUMMAR & TAVISH DHINGRA

1010 1007
 ACKNOWLEDGEMENT

First and foremost, we would like to express our gratitude to our Prof. Dr Kriti Parashar,
who was a continual source of inspiration. She pushed us to think imaginatively and urged
us to do this homework without hesitation. Her vast knowledge, extensive experience, and
professional competence in the field of Sociology enabled us to successfully accomplish
this project. This endeavour would not have been possible without her help and
supervision. We could not have asked for a finer mentor in our studies.

This initiative would not have been a success without the contributions of each and every
individual. We were always there to cheer each other on, and that is what kept us together
until the end.

I’d like to thank Amity University, Uttar Pradesh for providing us with the opportunity to
work on the project – Sedition Laws.

Last but not least, we would like to express our gratitude to my families, siblings, and
friends for their invaluable assistance, and we are deeply grateful to everyone who has
contributed to the successful completion of this project.
 INDEX

1. Abstract

2. Introduction

3. Law Commission on Sedition

4. Sedition Laws in India

5. Statutes related to Sedition Laws

6. Case Laws against Sedition Laws

7. Need for Sedition Law

8. Conclusion and Recommendations

 SEDITION LAWS

ABSTRACT
The paper mainly discusses about the concept of Sedition Laws and it applicability of
this law in the current Indian legal scenario. The law of sedition have been introduced
in India as measure to curd the unwanted usage of the freedom of speech. The
punishment for the offence of sedition is harsh with minimum seven years of
imprisonment which may extend to life imprisonment. (“(PDF) SEDITION IN INDIA
| MOHIT YADAV - Academia.edu”) It is considered as a cognizable, non- bailable and
non - compoundable offence under the Indian Jurisprudence. With the passage of time
there has been a widespread mis usage of this particular provision and currently it has
been employed as a tool of harassment to curb free speech. As a result, there have been
strong calls to remove the Sedition clauses, which are considered as an antiquated
legislation designed to protect colonial interests. The Supreme Court in a recent writ
petition have stated that the sedition statute was from the colonial era, and have
questioned the centre government whether it was still essential after 75 years of
independence. The Court stated that the statute has been abused to the point where it is
"like handing a carpenter a saw to cut a piece of wood and he uses it to cut the entire
forest."
This paper mainly focuses on the analysis of the sedition regulation in our country and
also tries to find out that the current sedition law outdated and weather these law need
an amendment. As the law on sedition in India has been employed as a tool of
harassment to curb free speech. This has resulted in widespread demands to repeal the
provisions regarding sedition as it is seen as an archaic law that was meant to serve the
colonial interests. This paper mainly tries to find out the need for the sedition law along
with a complete analysis of the regulation. This is done thorough considering the
legislative as well as judicial interpretation of the statute. The act is also supported with
an analysis on the idea of free speech and its role in a modern societal system.

Keywords: Sedition, Free Speech, Section 124A, Judicial Precedents,

Criminalization.

INTRODUCTION:
Sedition can be understood as “an insurrectionary movement tending towards treason,
but wanting an overt act, attempts made by meetings or speeches, or by publications, to
disturb the tranquillity of the state”. Sedition law in India is covered under section 124-
A of the IPC which give a marginal note on the regulations related to sedition in India.
It covers the crimes that come under the law it does not give a precise definition of the
term sedition itself. (“Constitutionality Of Sedition Law in India - iPleaders”) The Pre-
independent period this particular regulation of sedition was created to use against the
Indian nationalist leaders who fought for the freedom of our country. Mahatma Gandhi
called section 124A IPC as “the prince among the political sections of the IPC designed
to suppress the liberty of the citizen”. The fundamental challenge that this particular
sedition rule faces is a conflict between the rights given by the Constitution and the
requirement for those rights to be applied within a legal regulation designed by a foreign
authority with an objective that is no longer applicable in the current situation. As a
result, there is frequently a contradiction between rights and Pre – Constitutional laws
remaining in effect, and courts are frequently called upon to assess the legitimacy of
such laws under psychologically different and completely different socioeconomic
desires and conditions. The paper has been divided into four parts. The first part is the
law of sedition in India, the relevant provision and its scope. The second part deals with
the case against sedition and the arguments which are commonly stated against the law
of sedition. This part also tries to examine the manner in which the law of sedition has
been interpreted by the judiciary. The third part talks about the concept of Free Speech
and various theories and its relation with the free speech concept along with its relation
on the restrictions by sedition. The fourth part tries to look from the opposite side by
talking about the need of a sedition law and then moves to the conclusion and
suggestions part which tries to sum up the entire paper.

LAW COMMISSION ON SEDITION:

"The Law Commission of India has dealt with the issue of sedition and the reform this
provision needs in its report as early as in the year 1968." (“SEDITION LAW IN
INDIA: A CRITICAL ANALYSIS”) Reports followed in the year 1971 which
comprised of two reports pertaining to this issue and in recent times in the year 2017
when the commission made a distinction between the ingredients of the offence of
Sedition and hate speech.

1.1 The 39th Report, 1968 This report basically dealt with the penalty that was imposed
under this offence and pointed out that the punishment prescribed for this particular
offence was too grave and disproportionate to the object sought to be eliminated. It
highlighted that this offence should not be made punishable than imprisonment for life
as there are certain inconsistency in the manner the cases are prosecuted with regard to
the offence of sedition.

1.2 The 42nd Report, 1971 This report in particular propounded major suggestion to
this provision and emphasised on the fact that the mental element should be included as
an ingredient to the offence of sedition. Furthermore, the disaffection that is limited to
the government should extend to its other organs such the Judiciary and even the
Executive. The major premise of this report was that it limited the scope of punishment
to seven years accompanied with fine as it pointed out towards the gap present between
the imprisonment for life and three years’ imprisonment. It is to be noted that the Union
government did not adhered to such recommendation at that time. In the year 1971,
another report was published which has presented the recommendations made out in the
42nd report only.
1.3 The 267th Report, 2017 In the year 2017, the commission brought forth the
recommendation on the issue of hate speech which established the distinction between
hate speech and sedition as an offence. The premise of this lies on the fact that the
former happens to be an offence that hampers the public peace, while the latter is a
grave offence which includes the act which cause threat to the ‘sovereignty’ and ‘unity’
of the nation. There are various tests devised to check which form of speech qualifies
to be held as seditious as what may seem to be ‘disaffection’ or ‘disloyalty’ may rather
be constructive criticism and point out the legitimate short comings that are prevailing
in the society. There exists a ‘right to offend’ which must not perish to the colonial
provisions as speeches which may seem to be offensive may later prove to be path
breaking in the form of ideas and expressions forming the basis of a healthy modern
democratic society.

SEDITION LAWS IN INDIA:

The sedition law in India is a product of the British colonial rule and how a colonial
suppressive rule can have an effect in the rules and regulations of a country. The law
against sedition in India is contained in section 124 – A of the Indian Penal Code, 1860.
It is important to note that the word “Sedition” has not been used anywhere in the
Constitution, it merely forms a marginal note to the section in the IPC. It was also
removed as one of the grounds for nullification of laws under Article 13(2) of the
Constitution. Section 124 – A was inserted in 1870 Indian penal code by the British
government in order to suppress all the voices that has been roused against them which
can be clearly understood from their attitude during various freedom protests. The
provision as it stands today finds its place in Chapter VI of the IPC which deals with
“Offences against the State”.

Under section 124 – A 3 there are certain important points or elements that need to be
taken into consideration which has to be taken into account while bringing any act under
the banner of a seditious nature, these elements are:
(i) A person must bring, or attempt to bring into hatred or contempt, or excite or
attempt to excite disaffection;
(ii) (ii) Such disaffection should be targeted against the government established
by law in India;
(iii) (iii) The said disaffection may be caused by words that should be either in
written or spoken, or by signs, or by visible representation, or otherwise; and
(iv) (iv) The said words must not amount to a fair criticism of policy or
administrative action undertaken by the government.

This section is intended to criminalize mere words regardless of any consequent action.
Disturbance to public order is implicitly not intended to be included as a necessary
ingredient of the section. The words in this section has been used in such a broad way
so that it can be easily include any person who tries to act against the will of the
sovereign under the list of the seditious act. The main question that need to be taken
into consider while talking about the sedition provision is that weather the act or words
against the government also falls under the ambit of the Crime of Sedition under the Offence
against the state.

STATUTES RELATED TO SEDITION LAWS:

1. Criminal Procedure Code, 1973
The Criminal Procedure Code contains Section 95 which gives the government the right
to forfeit material punishable under Section 124A on stating grounds. The section
requires two conditions to be fulfilled:
1. That the material is punishable under the sections
2. The government gives grounds for its opinion to forfeit the material.
Chapter X of Criminal Procedure Code deals with maintenance of public order and
tranquillity and permits Police, Magistrate, Armed Forces to cause an unlawful public
assemble to disperse, if necessary, by use of force and to restore public order. Acts which
could be deemed to be seditious can be prevented by these pre-emptive actions.

2. Prevention of Seditious Meetings Act, 1911

The Seditious Meetings Act, which was enacted by the British to control dissent by
criminalizing seditious meetings, unfortunately continues to be on our statute books.
Section 5 of the Act empowers a District Magistrate or Commissioner of Police to
prohibit a public meeting in a proclaimed area if, in his opinion, such meeting is likely
to promote sedition or disaffection towards the government or to cause a disturbance of
the public tranquillity. This legislation was specifically enacted to curb meetings being
held by nationalists and those opposed to the British Government, the continuation of
this legislation is completely unnecessary and undemocratic.

3. Unlawful Activities (Prevention) Act, 1967

According to Section 2(o) of the said Act, supporting claims of secession, questioning
territorial integrity and causing or intending to cause disaffection against India fall
within the ambit of unlawful activity. Section 13 punishes unlawful activity with
imprisonment extending to seven years and a fine.

4. Insult to Indian National Flag and Constitution of India, 1971

Section 2 of the said Act states as whoever in any public place or in any other place
within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon
or otherwise shows disrespect to or brings into contempt (whether by words, either
spoken or written, or by acts) the Indian National Flag or the Constitution of India or
any part thereof, shall be punished with imprisonment for a term which may extend to
three years, or with fine, or with both.
 5. Constitution and Sedition Laws
The effect of these laws threatens to undermine, and gradually destroy, the legitimate
and constitutionally protected right to protest, dissent or criticize the government.
(“Dear Supreme Court, It’s Time to Erase the Draconian Sedition Law”) As a result
after the Constitution of India came into operation the Constitutional validity of Section
124- A of the Code was challenged as being violative of the fundamental right of
freedom of speech and expression under Article 19(1) (a) of the Constitution of India.
Article 19(1) (a) provides guarantee to every citizen freedom of speech and expression.
That means every citizen of India can express their opinion freely. This right to freedom
of speech and expression secures protection for severely censuring existing government
structures, policies, actions and administrative schemes, coupled with protection for
suggesting and recommending the required development of other systems. Freedom
given under Article 19(1)(a) is not absolute one. Article 19(2) deals with the grounds of
reasonable restrictions with regard to Article 19 (1) (a). "Sedition has not been
mentioned therein as one of the grounds justifying reasonable restrictions." (“The Laws
for Sedition in India: An analysis”) Now the question comes whether Section 124-A of
Indian Penal Code imposes reasonable restrictions on the freedom of speech and
expression guaranteed under Article 19(1) (a). However, this conflict between sedition
and freedom of speech is not recent origin. "The framers of the Constitution also have
apprehended with the dilemma as to whether the word “sedition” should be used in
Article 19(2) but finally they omitted it." (“Sedition under Indian Penal Code (S. 124-
A)”) It was witnessed that if they have the intention to insert it within Article 19 (2)
they would have inserted it. Although, they decided not to use the word “sedition” in
clause (2) but used the more general words which cover sedition and everything else
also. (“Debi Soren And Ors. vs The State on 24 September, 1953 - Indian Kanoon”)

CASE LAWS AGAINST SEDITION LAW:

The sedition law or the provision of sedition law is one of the most misused provision
under the judicial system of our country. Mahatma Gandhi once said that “Section
124A, under which I am happily charged is perhaps the prince among the political
sections of the Indian Penal Code designed to suppress the liberty of the citizen”4 .
Since its establishment in 1950, the Supreme Court of India has only dealt with 39 cases
that refer to sedition and has pronounced only 7 judgments wherein it has extensively
discussed the offence. By taking all these judgments into consideration it can be easily
understood that the court have either have only took the entire idea of sedition in a
narrow way. Various judgments have tried to question the act of government in misuse
of this section but still haven’t questioned it in its full potential. This part of the paper
tried to conduct a complete analysis on the above said cases and tries to understand how
the Indian judicial system have taken this issue into account. For which we have taken
2 important judgments that are: Tara Singh Gopi Chand vs. State (1951); Kedar Nath
Singh v. State of Bihar (1962)
 (i) TARA SINGH GOPI CHAND V. STATE (1951)

Tara Singh case was the first sedition case under the independent Indian judiciary.
The case has its own importance as it marks the mindset and the application on how
the Indian judicial as well as the government looked on the concept of sedition.

The first sedition case in independent India has its own twists and turns the case
went in such a twist that the Punjab and Haryana High Court held that S.124A was
unconstitutional and stated the sedition law violated the fundamental right to
freedom of speech and expression. “A democratic state will see changes in political
ideologies and ruling parties. Sedition laws may have been necessary during foreign
rule. However, they are inappropriate by the nature of the change which came about
at independence”.

Further, the court also stated that although Article 19(2) gives reasonable
restrictions to the fundamental right of free speech, the restriction has to be
constitutional and not excessive. The judgment heavy criticized the sedition law but
still was not taken into consideration and the sedition still prevailed in the country.

The court in this case also took a similar opinion about the factors that are related to
the sedition and have also clearly opposed the idea of sedition and its relation with
attack on the ruling party. The court in the Sabir Raza case viewed “any criticism of
the Government done by a Member of Parliament or Government policy as protected
under the right to freedom of speech and expression and such speech cannot be
penalised under sedition even if it disrupts public order”.

On the issue of threatening the security of the State, the Court held that disruption
of public order does not lead to the overthrow of State. It is only by rebellion and
mutiny that the State can be overthrown, and a Republic destroyed.

(ii) KEDAR NATH SINGH V. STATE OF BIHAR (1962)

The Kedar Nath Judgment is a landmark judgment that decided the future of the
sedition law in India. In the case the court decided on the constitutional validity of
the section 124A of the IPC i.e the sedition law on the basis of all the above
mentioned precedent judgments.

The constitution bench of the Supreme Court in the case have overruled all the
aforementioned High Court precedents. It held that sedition is a valid exception to
free speech so long as it intends to incite violence.

The factual matrix of the case is that the petitioner Kedar Nath was charged with
sedition for his speech in 1953. He had accused the Congress government of
corruption and targeting Vinobha Bhave’s attempts to redistribute land. The court
carved out the scope for applying sedition. It noted that any words of disloyalty
towards the government in ‘strong terms’ will not be sedition unless it causes “public
disorder by acts of violence”. Hence, this judgment predicated the applicability of
sedition on the likelihood of causing violence.

THE NEED FOR SEDITION LAW:

The law of sedition cannot be completely considered as a barbarian or an arbitrary
legislation as stated on basis of the above said theories it is very much evident that
it is important to retain sedition as a crime against the State, As the State being the
protector of our rights and there can be no substantive rights in the absence of the
State. Therefore, destabilizing the State by any means is undesirable and liable to be
punished.

It is also a well understood concept that certain words when spoken by certain
persons in particular contexts, do have the authority to incite violence and these may
start from religious leaders, politicians or even militant groups. Thus in an absence
of a strong regulatory law it can lead to a situation were any person can simply wage
a war against the country internally just through mere words or writing which can
be problematic in the future.

Paper also contends that any such act that is trying to affect the harmony as well as
the democratic set up of the country fall beyond the protection of free speech not
just because of the nature of the words and their tendency to cause violence, but
because in such situations, the words themselves constitute the acts and therefore
fall outside the purview of the free speech doctrine.

Thus, it can be clearly understood that any state need a sedition law that need to have
its own regulation on the people but the main part of the legislation will be based on
the amount of control or regulation such legislation is having on the rights of the
people.

CONCLUSION AND SUGGESTIONS:

The entire paper that talks on the constitutionality as well as the applicability of the
section 124A of the IPC or the sedition law has come to its conclusion part where
the main aim would be finding a solution to the research question that has been
posted in the starting of the paper i.e. is the current sedition law is outdated and does
it require an amendment.

On the basis of the entire discussion, it is very much evident that there a real and
pressing need to keep balance between the views of the supporting and opposite of
the law relating to sedition. Thus in order to achieve the said balance that is required
by any regulating legislations the paper suggests certain amendments to the current
legal setup.

The major change is to update the legislative write up of the sedition law where it
clearly demarks the act of sedition or the acts that can be potentially considered as
the crime of sedition. This can include the major look on the context of the act or
even the proving of the tendency to cause a problematic situation. The next part is
that proving of the fact that the accused must be in such a situation where he could
have caused chaos or is in an authority to cause problems.

The research solutions or the amendment suggestions that has been stated in this
conclusion part majorly aims to uphold the need for the sedition law at the same
time tries to maintain it with the rights of the people without making it as an arbitrary
and unconstitutional legislation.